The act of January 14, 1901, supra, is as follows:

Whereas the title to the lands in that section of the country in the county of Yuma and Territory of Arizona, and included within the boundaries of the old Mexican land grant known as the Algodones grant, was tried by the United States Court of Private Land Claims, created for the settlement of titles to such grants, in the years eighteen hundred and ninety-five and eighteen hundred and ninety-six; and Whereas in the hearing of said contest before said court the alleged grantees under said grant were successful and their title thereto by said trial court confirmed, and immediately thereafter the said alleged grantees, for large and valuable considerations, sold to numbers of people, citizens and bona fine settlers on said lands, in tracts of less than forty acres to each, and said settlers, then believing that they had a bona fide title to said lands sold, made lasting and valuable improvements and permanent homes thereon; and

Whereas the government of the United States appealed said cause from the decision of said court below, and on said appeal the said decision of the said court below was reversed, and the title to said grant in said alleged grantees adjudged to be void, and that the said lands included within the boundaries of said grant, and sold as aforesaid, belonged to the United States; and if said settlers, citizens, and occupants of said lands who so purchased the same as aforesaid be not permitted to retain the same, and pay the government therefor, they will be deprived of their homes, at ruinous consequences to them: Therefore

Be it enacted by the Senate and House af Representatives of the United States of America in Congress assembled, That where such persons in good faith and for valuable considerations purchased from the grant claimants prior to May twenty-third, eighteen hundred and ninety-eight, portions of the land covered by the said grant, and have occupied and improved the same, such persons may, within six months from and after the passage of this act, or within three months after the said lands shall be restored to entry, purchase the same at the price of one dollar and twenty-five cents per acre, upon making proof of the facts required by this act under regulations to be provided by the Commissioner of the General Land Office and approved by the Secretary of the Interior, joint entries being admissible where two or more persons have purchased lands on the same forty-acre tract: Provided, That no one person shall purchase more than forty acres, and no purchase shall be allowed for a less quantity than that contained in the smallest legal subdivision.

SEC. 2. That where persons duly qualified to make entry under the homestead or desert-land laws have occupied any of said lands with the intention of entering the same under the homestead or desert-land laws, such persons shall be allowed three months from and after the passage of this act, or after the said lands shall be restored to entry, within which to make their entries, and the fact that such persons have improved or reclaimed such desert lands shall be no bar to their making such entries.

The application of Theilman to purchase the NE. 4 of the NE. of said tract was made under the first section of said act, and the applica tions of Lynn and Miles to make homestead entries for the entire quarter section were made under the second section of the act.

The material facts in regard to the claims of each party are correctly stated in your said decision and need not be recited here. It is clear that Lynn was a bona fide settler and resident upon the land at the time of the passage of said act and for several years prior thereto. It is equally clear that neither Miles nor Theilman nor any one under

whom Theilman claims had at that time ever resided upon the lands claimed by them respectively. Miles claims to have purchased Lynn's interest in the land, but the proof fails to sustain such claim, and your said decision holding his entry for cancellation is correct and is affirmed.

Theilman in support of her claim produced deeds from the Algodones Company, the grant claimants, to Marable, and from Marable to herself, for the N. of the NE. of the NE. of said tract, and the proof shows that Marable had possession of said tract and cultivated it for about four years, but it is not shown that he or any one else ever resided upon it.

It is insisted in behalf of Lynn that only the immediate grantees or vendees of the grant claimants are entitled to purchase from the government under said act, and that Mrs. Theilman, being only a remote grantee of said claimants, has no such right of purchase. This position is not believed to be tenable. If she had purchased the interest of one who as the grantee of the original claimants had a right to purchase the land from the government, she would certainly have the same right by virtue of her purchase notwithstanding she was only a remote grantee.

In determining who are entitled to purchase from the government under said statute reference must be had to the preamble to the statute, since the right to purchase is conferred upon "such persons" as are described in the preamble. The preamble recites that the grantees, "for large and valuable considerations, sold to numbers of people, citizens and bona fide settlers on said lands, and said settlers, then believing that they had a bona fide title to said lands sold, made lasting and valuable improvements and permanent homes thereon." Having thus described the class of people intended to be benefited by said act, the preamble proceeds to point out the injury which was likely to result to said people and to remedy which the act was passed, as follows: "and if said settlers, citizens, and occupants of said lands who so purchased the same as aforesaid be not permitted to retain the same, and pay the government therefor, they will be deprived of their homes, at ruinous consequences to them." The act expressly describes those to be benefited thereby as citizens and bona fide settlers on the lands purchased from the grantees and as settlers who had made lasting and valuable improvements and permanent homes" on the lands, and the injury likely to result to them, and to prevent which the act was passed, was that "they will be deprived of their homes at ruinous consequences to them."

One who had merely purchased land from the grantees does not fill the description found in the preamble to the act; he must be a bona fide settler who has made lasting and valuable improvements and estab

lished a permanent home on the land. If he had not established a home on the land there was no danger that he would "be deprived" of his home.

It is therefore held that to entitle one to purchase said lands from the government he must have been a purchaser from the grantees and a bona fide settler and resident on the land, having a permanent home there of which he might have been deprived but for said statute. Neither Mrs. Theilman nor her grantor ever resided or had a home on the land, and therefore she does not come within the purview of said act. Your said decision allowing her to purchase the tract applied for by her is therefore reversed and her application is rejected. Miles's entry will be canceled and Lynn will be allowed to make entry for the entire quarter section.

HOMESTEAD-SOLDIERS' ADDITIONAL-ASSIGNEE.

JOHN S. MAGINNIS.

The widow of a deceased soldier who made entry in her own right for less that one hundred and sixty acres prior to the adoption of the Revised Statutes is entitled to an additional right of entry.

The right of additional entry granted to the widow of a deceased soldier by section 2307 of the Revised Statutes, if not exercised by her during her widowhood, is lost by her remarriage.

Secretary Hitchcock to the Commissioner of the General Land Office, (W. V. D.)

February 14, 1903.

(A. S. T.)

John S. Maginnis has appealed to this Department from your office decision of May 13, 1902, in the case of John S. Maginnis, assignee of Nannie E. Rose, formerly Nannie E. Eaton, widow of John Eaton, deceased, rejecting his application to enter, under sections 2306 and 2307 of the Revised Statutes, the NW. 4 of the NW. 4 of Sec. 6, T. 56 N., R. 13 W., and the SW. of the SW. 4, or lot 4, Sec. 31, T. 57 N., R. 13 W., Duluth land district, Minnesota.

Your said decision holds

that said original entry does not constitute a proper legal basis for the right claimed by the applicant for the following reason: the original entry was made by the widow of the soldier after his death, and conferred on her no additional right. (See the case of William Deary, 31 L. D., page 19.)

In addition to this she has remarried, and thereby forfeited any additional right to which she might have been entitled as the widow of said soldier.

It appears that John Eaton, the soldier, died on or about December 1, 1871, and that thereafter, to wit, on January 10, 1874, which was prior to the adoption of the revised statutes of the United States, his widow, the said Nannie E. Eaton, made homestead entry of forty acres of land, at the Jackson land office, Mississippi, which was after

wards canceled. She remarried some time prior to March 14, 1901, the date of the assignment of her alleged additional homestead right, under which Maginnis claims.

The Department does not concur in your said holding to the effect that the original entry constitutes no valid basis for the right claimed because it was made by the soldier's widow after his death. In the case of William Deary (31 L. D., 19), cited in your said decision, the application was rejected because the original entry was made by the soldier's wife before his death.

In the case of Homer E. Brayton (31 L. D., 443), this Department held that where the widow of a deceased soldier, prior to the adoption of the revised statutes, made an entry in her own right for less than one hundred and sixty acres, she was entitled to an additional right of entry. (See also Sierra Lumber Company, 31 L. D., 349.)

Section 2307 of the Revised Statutes allows the widow of a deceased soldier, who would have been entitled to the benefits of Section 2304, all the benefits enumerated in that chapter, the right of additional entry being one of the benefits, but this is allowed her on the express condition that she be unmarried.

In the case at bar the widow was entitled to an additional right of entry so long as she remained unmarried, but having failed to exercise the right during her widowhood, it could not be asserted by her during coverture.

Your said decision rejecting said application for that reason is therefore affirmed, and the application is rejected.

FOREST RESERVE-LIEU SELECTION-ACT OF JUNE 4, 1897.

JOHN T. MURPHY.

The reservation of a right of way thirty feet in width along each side of all section lines, for a public highway, in all conveyances of swamp lands made by the State of Oregon, does not constitute such an incumbrance upon lands so situated and embraced within a forest reserve as to render them unacceptable as bases for the selection of other lands in lieu thereof under the provisions of the act of June 4, 1897.

Secretary Hitchcock to the Commissioner of the General Land Office, (W. V. D.) February 21, 1903.

(F. H. B.)

July 10, 1899, John T. Murphy, claiming as grantee by sundry mesne conveyances from the State of Oregon, executed deed (recorded July 15, 1899) in favor of the United States, which purports to relinquish and reconvey the SE. of the NE. 4 of Sec. 35, T. 34 S., R. 6 E.; the SW. of the NE. and W. of the SE. of Sec. 2, and the

NW. of the NE. of Sec. 11, T. 35 S., R. 6 E., W. M., situate in the Cascade Range Forest Reserve, Oregon, and filed selections (among

others) in lieu thereof, under the act of June 4, 1897 (30 Stat., 11, 36), as follows:

for the NE.

of the NW.

No. 1406, December 4, 1899, in the Helena, Montana, land district, of Sec. 33, T. 26 N., R. 4 W., M. M., in of Sec. 35, T. 34 S., R. 6 E., W. M.

lieu of the SE. of the NE.

No. 3336, August 25, 1900, in the Missoula, Montana, land district, of Sec. 10, T. 26 N., R. 34 W.,

for the unsurveyed NW.

M. M., in lieu of the SW.

W. M.

of the SE.

No. 4126, August 28, 1900, in the Miles City, Montana, land district, for certain unsurveyed land (described in your office decision), in lieu of the NW. of the NE. 4 of Sec. 11, T. 35 S., R. 6 E., W. M.

October 28, 1902, your office rejected said selections, for the stated reason, in substance, that by the laws of Oregon an easement of thirty feet in width along each side of all section lines is reserved, for the purposes of a public highway, in all conveyances of swamp lands made by the State, and that, therefore, the title to the base lands which were acquired by the State under the swamp land grant is clouded by the easement and not the equivalent of the title sought under the lieu selections. Your office cited, in support of its decision, the cases of F. A. Hyde et al., on review (28 L. D., 284, 290), Edgar A. Coffin (30 L. D., 15), and Er parte Kehl (unreported).

Murphy has appealed to the Department.

In the Hyde case, supra, the title to the base land offered was not in the lieu selector, and it was held that he had nothing therein to relinquish and therefore no right of selection. In the cases of Coffin and Kehl, a perpetual easement, by the grant to private persons of a permanent right of way over and across the land offered as a base for the selection, had in each instance been charged upon said land. This was held to so far subtract from the complete legal title, and to involve such a possible incompatibility with the use and control of the land encumbered therewith as a part of a forest reservation, as to render an exchange inadmissible.

In the case at bar the right of way, if it in fact still exists, is of a public character and, by the terms of its creation, may be enjoyed only to the extent of thirty feet in width along the section lines. Situated as these tracts are, within the confines of the forest reservation, it is doubtful if the contemplated highway will be accessible or available during the lifetime of such reservation; and the servitude is not, in any event, of such character or extent as to be incompatible with the use and control of the burdened lands for the purposes for which the forest reserve was created. The easement is reserved expressly for the benefit of the public, the real grantee under the deed of relinquishment, and in consonance with its possession of the land, and is thus essentially different from those involved in the cases